December 2011 SDR – Voice for the Defense Vol. 40, No. 10

Voice for the Defense Volume 40, No. 10 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

Freeman v. United States, 131 S. Ct. 2685 (2011); Reversed, remanded (5–4)

        Freeman was charged with crack possession, among other charges, and entered a plea agreement that included a sentence of 106 months. After his agreement was accepted by the judge and his sentence was entered, the U.S. Sentencing Commission amended the Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive. Freeman sought to reduce his sentence. The district court refused to do so, and the Sixth Circuit affirmed.

        HELD: Reversal was warranted because (1) a district court has authority to entertain 18 U.S.C.S. § 3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant entered into a Fed. R. Crim. P. 11(c)(1)(C) agreement, and (2) the district court’s decision was “based on” the applicable Guidelines range since the district court expressed its independent judgment that the sentence was appropriate in light of that range.

United States v. Juvenile Male, 131 S. Ct. 2860 (2011); Vacated, remanded (5–3)

        COA held that the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U. S. C. §16901 et seq., violate the Ex Post Facto Clause of U.S. Const. art. I, § 9, cl. 3, when applied to juveniles adjudicated as delinquent before SORNA’s enactment.

        HELD: COA lacked constitutional authority to decide the case on the merits because it had no live controversy before it. It is a basic principle of U.S. Const. art. III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. “At the time of the Ninth Circuit’s decision in this case, the District Court’s order of juvenile supervision had expired, and respondent was no longer subject to the sex-offender-registration conditions that he sought to challenge on appeal. . . . As a result, respondent’s challenge was moot before the Ninth Circuit unless he could ‘show that a decision invalidating’ the District Court’s order would likely redress some collateral consequence of the registration conditions.” The petition for a writ of certiorari and respondent’s motion to proceed in forma pauperis are granted. COA’s judgment is vacated, and the case is remanded with instructions to dismiss the appeal.

Cavazos v. Smith, 565 U.S. ____, No. 10-1115 (Oct 31, 2011); Reversed, remanded (6–3)

        Doctors initially attributed Etzel’s death to sudden infant death syndrome. However, an autopsy concluded that the cause of death was shaken baby syndrome (SBS). Smith, Etzel’s grandmother, stated that when Etzel did not respond to her touch, she picked him up and gave him a little jostle. Smith was charged with assault on a child resulting in death. At trial, the jury heard seven days of expert medical testimony on the cause of death. The prosecutors offered three experts who each testified that Etzel’s death was the result of SBS. The defense called two expert witnesses to dispute the conclusions. The jury found Smith guilty.

        Smith filed a motion for new trial. The trial judge denied the motion, concluding that the jury carefully weighed the tremendous amount of evidence. On direct review, Smith contended that the evidence was insufficient to establish that Etzel died from SBS. The California Court of Appeal rejected this claim, determining that where there was competing medical testimony, it was for the jury to resolve the conflicts. Smith appealed to the California Supreme Court, which denied review. Smith subsequently filed a petition for writ of habeas corpus with a U.S. District Court, arguing that the evidence against her was insufficient. The District Court concluded that the evidence was sufficient to support a conviction. On appeal, the Ninth Circuit reversed and remanded, concluding that the absence of physical evidence indicated that the Court of Appeal had unreasonably upheld Smith’s conviction. The petitioners appealed.

        HELD: The Ninth Circuit exceeded its authority under the deferential standard for habeas corpus review by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion of prosecution experts. Evidence is sufficient to support a conviction so long as, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Court further stated that where there is conflicting evidence, a reviewing court must presume that the trier of fact resolved any such conflicts.

Fifth Circuit

United States v. Rios, 636 F.3d 168 (5th Cir. 2011)

        In trial for aiding and abetting the transportation of illegal aliens, district court did not abuse its discretion in refusing to give a “missing witness” instruction with respect to the government’s failure to call a co-defendant who pleaded guilty on the morning of trial and invoked his Fifth Amendment privilege against self-incrimination. A court should not grant a missing witness instruction unless the person who is the subject of that instruction (1) is peculiarly within one party’s power to produce and (2) would provide testimony that would elucidate facts at issue. Notwithstanding the fact that the government technically has the power to override the Fifth Amendment privilege by granting immunity, the Fifth Circuit refused to find that the government’s failure to grant immunity to a witness who invokes the Fifth Amendment privilege automatically entitles a defendant to a “missing witness” instruction.

United States v. Jackson, 636 F.3d 687 (5th Cir. 2011), withdrawing 625 F.3d 875 (5th Cir. 2010)

        District court violated D’s rights under the Confrontation Clause by admitting into evidence notebook ledgers received from a co-conspirator during a proffer session and an investigating officer’s testimony pertaining thereto, both of which were used to show the amount of cocaine the co-conspirator distributed to D. The ledgers fell outside the business-records and co-conspirator-statement exceptions to the right of confrontation recognized in Crawford v. Washington, 541 U.S. 36 (2004), and hence were “testimonial.” The ledgers were not properly authenticated as business records because the agent through whom they were introduced offered no testimony as to who prepared the ledgers and under what circumstances; there was no evidence that they were kept in the regular course of a drug-trafficking enterprise. For similar reasons, the ledgers were not sufficiently authenticated to render them admissible under the co-conspirator-statement exception. Accordingly, the court erred in admitting them. This error was not harmless beyond a reasonable doubt; given the government’s reliance on the ledgers in its closing argument, the government could not show that the ledgers did not contribute to the conviction. The Fifth Circuit vacated the conviction and remanded for further proceedings, including an opportunity for a new trial.

United States v. Henderson, 636 F.3d 713 (5th Cir. 2011)

        In each of three defendants’ cases, district court reversibly erred in denying D’s motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (based on the retroactive amendments to the crack cocaine Guidelines). In denying each motion, the court implied that it had not reconsidered the sentencing factors of 18 U.S.C. § 3553(a) in making this decision because it had already considered those factors in imposing a below-Guidelines sentence at the original sentencing. As such, in each case, the court did not recognize, and therefore did not satisfy, the requirement that they reconsider the § 3553(a) factors when deciding whether to reduce a sentence in response to a § 3582(c)(2) motion. The Fifth Circuit reversed the orders denying defendants’ § 3582(c)(2) motions and remanded for reevaluation of those motions.

United States v. Rhine, 637 F.3d 525 (5th Cir. 2011)

        In the original sentencing, the district court calculated D’s Guideline imprisonment range as 292 to 365 months and imposed a high-Guidelines sentence of 360 months; on remand from the first appeal, the Guidelines dropped to 30 to 37 months as a result of the favorable “relevant conduct” ruling made by the Fifth Circuit in the first appeal, but the district court went significantly upward to impose an aggregate sentence of 180 months. The panel majority affirmed this sentence, concluding that it was a variance, not a Guideline-based departure, and that it was neither procedurally nor substantively unreasonable. Judge Dennis filed a lengthy dissent, opining that as a variance, the sentence was procedurally unreasonable (as inadequately explained) and substantively unreasonable (because apparently plucked from the air). He also believed that even as a departure, the sentence was unsalvageably flawed.

United States v. Diaz, 637 F.3d 592 (5th Cir. 2011)

        (1) In drug case, district court did not impermissibly infringe upon D’s right to confrontation by barring him from questioning government agent about D’s status as an illegal immigrant or his employment at a business close to where the drug deal occurred. These rulings did not bar inquiries into witness credibility or reliability, the issues that are the touchstone of the cross-examination rights protected by the Confrontation Clause. Although D’s immigration status might have been relevant to provide an alternative explanation for his perceived actions (namely, that he had reason to be looking out for law enforcement), the restriction on questioning on this subject likewise was not, under the circumstances, an abuse of discretion.

        (2) District court did not abuse its discretion by permitting a government agent to testify that D was at the scene of the drug transaction “as a lookout.” This was not a forbidden expert opinion on D’s mental state in violation of Fed. R. Evid. 704(b), but rather was permissible lay opinion testimony based on personal perception and common-sense interpretation of D’s behavior, and not resting on scientific, technical, or specialized knowledge. Even if there were some error, it was harmless.

        (3) Brief omission of single word from written instructions, which was corrected within minutes of the jurors’ retiring to deliberate, did not, especially on plain-error review, require reversal, given the brief period of time in which the jury deliberated under the erroneous instructions and given the content of the instructions as a whole.

United States v. Ned, 637 F.3d 562 (5th Cir. 2011)

        (1) The automobile exception to the Fourth Amendment’s warrant requirement applies with equal force to unoccupied, parked cars in places not used for residential purposes. Here, the police had more than sufficient probable cause to believe D’s vehicle, parked outside a nightclub, contained drugs, based on a tip from D’s girlfriend and an alert by a narcotics dog.

        (2) District court did not abuse its discretion in admitting testimony that D told his girlfriend, “Go to the front door.” This was non-assertive oral conduct that simply was not hearsay. Nor did court abuse its discretion by admitting his Auto Zone card into evidence because there was a sufficient predicate laid to admit this under the business-records exception to the hearsay rule; there is no requirement that the witness who lays the foundation for the admission of a record under the business-records exception be the author of the record or be able to personally attest to its accuracy. Rather, a qualified witness is one who can explain the record-keeping system of the organization and vouch that the requirements of the business-records exception are met. Nor was the Auto Zone card more unfairly prejudicial than probative. Finally, objection that jailhouse snitch had given speculative testimony unfounded on personal knowledge was without merit, as he later established the basis for his knowledge. In any event, any error was harmless because of other, properly admitted evidence.

United States v. Skilling, 638 F.3d 480 (5th Cir. 2011)

        On remand from the U.S. Supreme Court, the Fifth Circuit was tasked with deciding whether the submission of the case to the jury on a flawed “honest-services fraud” theory was harmless error. Under Hedgpeth v. Pulido, 555 U.S. 57 (2008), and Neder v. United States, 527 U.S. 1 (1999), an alternative-theory error—i.e., where a jury rendering a general verdict was instructed on alternative theories of guilt, one of which was legally flawed—is harmless if (1) the verdict would have been the same absent the error because the jury could not rationally acquit on the valid theory, or theories, of guilt, or (2) the jury, in convicting on the invalid theory of guilt, necessarily found facts establishing guilt on a valid theory. The Fifth Circuit repudiated pre-Pulido precedent applying a more stringent test of harmlessness (the “impossible to tell” harmless-error standard). Under the applicable standard, the submission of the erroneous “honest services” theory to the jury did not require reversal of D’s conspiracy conviction because there was overwhelming evidence of guilt on the legally valid theory of guilt; because D’s challenges to his remaining convictions piggybacked off the claimed error with respect to the conspiracy conviction, it followed that the harmlessness of the error with respect to the conspiracy conviction likewise meant that there was no basis to challenge the remaining convictions.

United States v. Wright, 639 F.3d 679 (5th Cir. 2011)

        In child pornography case, the Fifth Circuit vacated $529,661 restitution award to former minor depicted in some of the images. Under In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011), minor was entitled to restitution without the need for proof of a causal connection between D’s offense conduct and the victim’s recoverable losses; nevertheless, the Fifth Circuit could not discern any supportable rationale for this particular amount of restitution. The Fifth Circuit remanded for the district court to reconsider the restitution order and to set forth its reasons for whatever restitution award it made on remand. (Three judges concurred, disagreeing with In re Amy Unknown to the extent that it refused to impose any proximate-cause limitation upon this type of restitution order and urging that this case be consolidated with In re Amy Unknown for en banc rehearing.)

United States v. Winkler, 639 F.3d 692 (5th Cir. 2011)

        Evidence was sufficient to sustain D’s conviction for knowing receipt of child pornography images found only in the temporary storage of D’s hard drive; although there are concerns that files found in the temporary cache of a computer may have been inadvertently accessed, here the evidence was overwhelming that D sought, downloaded, viewed, and had the ability to manipulate the images. With respect to D’s challenged conviction for possession of child pornography, there was sufficient evidence of D’s knowing possession of those files and the interstate commerce element of the offense.

Court of Criminal Appeals

State’s PDRs

Zuliani v. State, Nos. 0884-11 & 0885-11 (Tex.Crim.App. 11/2/11); Vacated, remanded (7–0)

        Appellant was convicted of reckless driving and deadly conduct. The jury assessed punishment at 30 days’ confinement and a $100 fine for the reckless driving conviction and one year’s confinement and a $3,000 fine for the deadly conduct conviction. COA concluded that appellant’s two convictions represented multiple punishments for the same offense, in violation of the prohibition against double jeopardy and reversed the conviction for reckless driving. The State petitioned that COA erred in failing to consider legislative intent in its double jeopardy analysis.

        HELD: In considering appellant’s double jeopardy claim, COA compared the elements of the two offenses, as charged, and concluded that they were the same for double jeopardy purposes in this case; this analysis was correct, but incomplete. Impermissible multiple punishments occur when the same criminal act is punished twice under two distinct statutory provisions and the Legislature intended the conduct be punished only once. Here, COA did not consider whether the Legislature intended appellant’s conduct to be punished only once. CCA will not conduct an analysis of legislative intent for the first time in a PDR, and instead remanded for COA to consider.

Goad v. State, No. 0435-11 (Tex.Crim.App. 11/9/11); Affirmed (9–0)

        Appellant was charged with burglary of a habitation and sentenced by a jury to 20 years’ imprisonment. The indictment alleged that appellant entered the victim’s house with intent to commit theft. At the charge conference, appellant requested an instruction on criminal trespass, which was denied by the trial judge. On appeal, appellant argued that the trial judge erred by denying his request for a lesser-included-offense instruction. COA agreed, holding that the jury rationally could have found appellant guilty only of criminal trespass because, given the facts, the jury could have believed that appellant was looking for his dog when he entered the victim’s home. CCA granted the State’s PDR on the following ground: “Does a trial court abuse its discretion by refusing to submit a lesser included instruction that is only ‘supported’ by unrelated hearsay admitted through the victim?”

        HELD: Since the evidence supports an inference that appellant was looking for his dog and a jury that accepted this inference could rationally believe he lacked intent to commit theft, COA did not err in holding that the evidence supports a lesser-included-offense instruction on criminal trespass.

Barron v. State, No. 1770-10 (Tex.Crim.App. 11/9/11); Affirmed (6–3)

        Appellant was convicted of misdemeanor DWI and appealed. There was a jury instruction for “synergistic effect,” from appellant’s alleged combined use of prescription drugs and alcohol. COA found error in this jury instruction because “there is no evidence that [A]ppellant ingested hydrocodone, hydrocodeine, or any other prescription medication on the day in question,” and thus “the ‘synergistic effect’ instruction was not raised by the evidence.” Furthermore, the State failed to preserve evidence that appellant had prescription medications in her possession. But, COA then found “some harm” on the same basis that “there is no evidence in this record that [A]ppellant ingested any intoxicating substances other than alcohol.”

        HELD: CCA agreed that the instruction was not harmless but found that COA’s harm analysis only repeated its error analysis; a proper analysis should follow the guidelines in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1984), assaying the degree of harm “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

Appellants’ PDRs

Lucio v. State, No. 0659-10 (Tex.Crim.App. 11/9/11); Affirmed (8–1)

        A jury convicted appellant for murder and engaging in organized criminal activity. Appellant petitioned that the trial court improperly commented on the weight of the evidence by singling out a particular piece of evidence in its answer to the jury’s question that asked whether the law permitted family members to testify.

        HELD: The general rule that prohibits the court from singling out a particular piece of evidence in its instructions given prior to jury deliberations does not necessarily apply when the court merely responds to the jury’s question concerning a subject identified by the jury alone. Nothing in the trial court’s answer focused the jury on the fact that none of appellant’s family members had testified during the punishment phase. Rather, the jury alone focused on that fact, which prompted its note to the trial court, perhaps because of evidence supplied by appellant’s girlfriend, who testified that appellant “only associated with his family.” In response to the jury’s question, the trial court merely provided a correct statement of law that family members with relevant evidence were not prohibited from testifying. From this, the jury could have permissibly inferred either that none of the available family members could provide relevant information or that appellant did not call the available family members to testify because they would supply evidence unfavorable to appellant.

Harris v. State, No. 0945-10 (Tex.Crim.App. 11/9/11); Reversed, remanded (8–1)

        Pursuant to a three-count indictment, appellant pled guilty and was convicted in a single proceeding of three offenses of indecency with a child by exposure. These three convictions arise out of a single act or criminal episode during which appellant masturbated knowing that one six-year-old girl and two nine-year-old girls were present. The trial court sentenced appellant to ten years’ imprisonment for each count, with counts 1 and 2 running consecutively, and count 3 running concurrently with counts 1 and 2. On direct appeal, appellant argued that the trial court erred in the conviction and punishment of three separate counts of indecency by exposure, arising from the same criminal episode, when the offense is a non-victim-based crime for which double jeopardy bars multiple prosecutions.

        HELD: The gravamen of the offense of indecency with a child by exposure is the act of exposure, not the number of children present. The allowable unit of prosecution for the offense is the act of exposure, and consequently, the child-victim’s name is not a necessary element of proof. Thus, appellant committed only one offense under Tex. Penal Code § 21.11(a)(2)(A) when he exposed himself to three children at the same time.

Morales v. State, No. 1155-10 (Tex.Crim.App. 11/9/11); Reversed, remanded: Keller (9–0)

        Lopez and appellant’s brother, Juan, fought each other in a December 2007 gang fight. At some point, appellant shot and killed Lopez. Some witnesses said Lopez was unarmed; some said he was beating Juan with a metal pipe. One witness said Juan helped pull baseball bats out of a car and then participated in beating Lopez. Other witnesses said Juan was lying helplessly on the ground while Lopez attacked him with a pipe. Appellant was prosecuted for murder. The jury charge contained instructions on defense of a third person. These instructions incorporated some instructions on self-defense. Originally, the charge included language regarding whether “a reasonable person in the defendant’s situation would not have retreated.” Appellant objected to this instruction as not consistent with the current statute.

        In 2007, the legislature made significant amendments to the self-defense statute, Tex. Penal Code § 9.32, adding provisions that under certain circumstances allow a person to stand his ground while defending himself and create a presumption that a defendant’s conduct was reasonable. After studying the matter, the trial judge modified the instructions. Appellant maintained that his objection applied to the modified charge.

        HELD: The self-defense and defense of third person statutes are not limited to particular crimes; they simply provide that use of force or deadly force is justified in certain circumstances. These defenses logically apply to the crime of participating in a riot, so long as all of the actor’s actions that would otherwise constitute participation are justified under one or more of these defenses. Not only is this interpretation consistent with the plain language of the statutes; it avoids the absurd result of penalizing someone simply because his attackers are numerous.

        CCA noted that the focus of the defense-of-third-persons defense is on what the actor reasonably believes concerning the situation of the third person. If appellant reasonably believed that Juan’s participation in the riot was limited to legitimately defending himself, then appellant would be entitled to the presumption, even if appellant’s belief was incorrect. COA did not address whether there was evidence to support that appellant reasonably believed all of Juan’s actions would be justified by self-defense. If there is a conflict in the evidence on the relevant matters, then there may be a fact issue supporting the submission of the presumption to the jury, “unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact.”

Court of Appeals

Summaries by Chris Cheatham of Cheatham Law Firm, Dallas

State v. Ortiz, No. 07-11-00001-CR (Tex.App.—Amarillo 7/13/11)

        Officer’s question to D concerning what kind of drugs D’s wife had on her person constituted a post-arrest interrogation of D within Miranda. “[Officer’s] question does not fall within the category of general or routine questions incident to an arrest. Rather, it specifically addressed the officers’ discovery of the item strapped to the leg of [D’s] wife as she was searched in the presence of [D] and [officer]. [Officer’s] question to [D] asking the ‘kind of drugs’ his wife had was practically certain to elicit an incriminating response.”

State v. Webre, No. 03-11-00036-CR (Tex.App.—Austin 8/5/11)

        Blood draw affidavit deemed sufficient, even though it did not detail what police intended to do with sample and did not state specifically how the sample would constitute evidence of DWI. The court refers to D’s arguments as novel and then states: “[D] cites no case, nor have we found any, holding that an affidavit in support of a warrant in this situation must specify what is to be done with the blood sample after it is taken, nor do we know of any authority instructing that the failure to include this sort of detail in an affidavit should invalidate a magistrate’s determination of probable cause. Instead, the Court of Criminal Appeals has consistently held that reviewing courts are not to take such hypertechnical views of affidavits supporting warrants. The magistrate needed simply to determine the probability that evidence of an offense, i.e., a blood alcohol content exceeding the legal limit, would be found in [D’s] blood when the warrant issued. . . . Even if the detail that [D] suggests were required to justify a warrant, the affidavit is sufficient if the magistrate could have reasonably inferred the required information from the facts set forth in the affidavit.”

Steele v. State, Nos. 01-10-00788-CR & 01-10-00789-CR (Tex.App.—Houston [1st Dist] 8/11/11)

        Search warrant affidavit deemed sufficient even though it lacked specific dates for certain facts. “[D] contends that a reader of the affidavit supporting the search warrant cannot discern when [witness] filed his initial report with [police department], when [officer] was assigned to the case, when [officer] interviewed [witness], or when [officer] interviewed [witness]. Although the affidavit omits the specific dates of these events, it contains references to time,” concluded court. For example, “[t]he affidavit establishes that both [witnesses] stated that [D] was currently living with an 18-year-old male, named K.A.” Although D contended that the word “currently” is meaningless because the affidavit fails to specify when the witnesses made these statements to officer, the court nevertheless concluded that the affidavit “establishes that K.A. was born in April 1990. Thus, [witnesses] must have made these statements during or after April 2008, when K.A. attained 18 years of age.”

State v. Bell, Nos. 14-10-00771-CR & 14-10-00772-CR (Tex.App.—Houston [14th Dist] 8/16/11)

            Employee of shopping mall management company did not have reasonable expectation of privacy in the premises of the mall. There was an absence of evidence of extent of management company’s involvement in day-to-day operations of premises or responsibility for signage indicating that premises were private property. In addition, any right against unreasonable search or seizure would have been enjoyed solely by the management company itself and could not be vicariously asserted by an employee of the company such as D (even though D held the title “Mall Manager”).

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